Parents of children with disabilities on Wednesday asked a federal judge to reconsider a decision rejecting their request to block Gov. Ron DeSantis’ efforts to prevent school mask requirements during the COVID-19 pandemic.
Judge K. Michael Moore this month denied a request for a preliminary injunction against an executive order that DeSantis issued July 30. The executive order led to the Department of Health issuing a rule that required districts to allow parents to opt out of student mask mandates.
But the parents of children with disabilities Wednesday asked Moore to reconsider his decision, pointing to a revised Department of Health rule that gives families more authority to decide whether children go to school after being exposed to people who have COVID-19. An earlier version of the rule required students to be quarantined for a certain number of days if they came in contact with someone who had COVID-19.
In a motion for reconsideration, lawyers for the parents argued “the return to school has even become more dangerous to these plaintiffs and all children with disabilities that would be placed in dire risk if becoming infected with COVID-19.” The lawsuit contends that DeSantis’ executive order violated the Americans with Disabilities Act and other federal laws designed to protect the rights of students with disabilities.
“Now, instead of only dealing with the prospect of having children without masks, immunocompromised children also must also be in contact with these same children who may be exposed to COVID-19 (and) are asymptomatic. Such conditions are untenable for children with disabilities and will lead to these children being excluded from school or, if not, at risk of death,” lawyer Matthew Dietz wrote in Wednesday’s motion.
Moore’s Sept. 15 ruling said the plaintiffs should have pursued administrative claims before the lawsuit. Such administrative claims, he wrote, are required under a federal law known as the Individuals with Disabilities Education Act, or IDEA. But in Wednesday’s motion, Dietz argued that Moore “failed to take into account the futility of administrative remedies in this exact type of situation, where the health and safety of children are at issue.”
It takes 75 days to exhaust the administrative process, Dietz wrote.
“As such, this completely forecloses some of the plaintiffs from returning to in-person school, and places all other children with disabilities who choose to go to school at risk,” the lawyer wrote.
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